' The brief facts of the prosecution case are that on 10th July, 1976 Mst. Gullan asked Mst. Nasreen Kausar to accompany her to Chashma Mela for fetching water. Mst. Nasreen Kausar accompanied her to the said place. On reaching there Mst. Gullan gave a call to Yusuf accused that she had brought Mst. Nasreen Kausar, upon which aforesaid Yusuf armed with rifle, Sarfraz, Muhammad Yar and Taj Muhammad accused armed with guns came there and forcibly took away Mst. Nasreen Kausar. On her alarm, Muhammad Amir son of Muhammad Sher, Muhammad Amir son of Fateh Muhammad and Muhammad Nawaz got attracted. They tried to rescue her but the aforementioned accused threatened them. On the way Rab Nawaz and Gulsher who were armed with guns, also joined them. All the accused confined Mst. Nasreen Kausar in a cave near their Dera where Yusuf accused committed rape with her. After a few days the accused called Maulvi Abdur Rehman accused and obtained thumb-impression of Mst. Nasreen Kausar on a paper. Later on, Yusuf accused and Muhammad Yar (since dead), took her to some unknown place. On the way Nura, Nur Hayat, Ahmad Khan, Allah Yar accused and Muhammad Iqbal Labrador who were armed with guns also joined them, and then all of them took her to different places. Then she was again detained in the same cave. She was recovered from the Dera of the accused on 22nd September, 1976.
' The case was registered on 19th July, 1976 on the report of Muhammad Hang, father of Mst.
Nasreen Kausar. It was investigated by Fazal Hussain, A.S.I. He arrested Mst. Gullan on 22-7-1976, Gulsher on 26-7-1976, Nur Hayat, Ahmad Khan, Taj Muhammad, Nur Muhammad and Abdur Rehman on 16-8-1976 and Yusuf and Sarfraz on 22-9-1976. After the investigation, the accused persons were challaned. They were tried by Magistrate Section 30, Jauharabad, who, by his judgment dated 28-9-1980 convicted Mst. Gullan, Yusuf, Sarfraz and Taj Muhammad under sections "148/149" and 366/149, P.P.C. And sentenced them to rigorous imprisonment for three years each on the first count and R.I. For seven years and a fine of Rs,500 each on the charge of abduction. Yusuf accused was further convicted under section 376, P.P.C. And sentenced to R.I. For seven years and a fine of Rs,1,500 or in default in the payment thereof to undergo further R.I. For six months. All the sentences were ordered to run concurrently. Muhammad Yar died during the trial while Gulsher, Allah Yar, Rab Nawaz, Abdur Rehman, Noor Hayat, Ahmad Khan and Noor Muhammad accused were acquitted of the charges. The convicts have appealed.
2. On 22-9-1976 Mst. Nasreen Kausar was medically examined by Woman Medical Officer, Civil Hospital, Khushab. Her hymen was ruptured at 5 O'clock and 11 O'clock position. Three vaginal swa bs were sent for chemical examination which were found stained with semen. In the opinion of the lady doctor, her age was fifteen and a half years and she had been "used for sexual intercourse".
3. The accused persons pleaded not guilty to the charge and contended that they had been falsely implicated due to enmity. Yustf accused produced documents Exh. D.B. And Exh..D.D. And closed his defence.
4. In support of its case the prosecution examined twelve witnesses in all and its main stay is the testimony of Mst. Nasreen Kausar and Muhammad Amir P.W.3.
5. The learned trial Magistrate accepted the prosecution evidence against Mst. GulIan, Yusuf, Sarfraz and Taj Muhammad and came to the conclusion that they along with Muhammad Yar accused formed themselves into an unlawful assembly, the common object of which was to abduct Mst. Nasreen Kausar and in prosecution of the same they abducted Mst. Nasreen Kausar and Yusuf accused committed rape with her. He, therefore, convicted and sentenced them as mentioned above.
6. The learned counsel for the appellants contended that Yusuf appellant wanted to produce Assistant Commissioner, Shakargarh, in defence as Mst. Nasreen Kausar had made a statement before him that she was not abducted by anybody and had contracted marriage with Yusuf accused of her own free will, but the trial Magistrate declined to summon him as a defence witness, therefore, the accused were prejudiced in their defence. He has taken me through the file of the trial Court which shows that Yusuf appellant made an application for summoning the Assistant Commissioner as a defence witness but the application was dismissed by order, dated 10th February, 1980. This order was challenged in revision which was accepted by the learned Additional Sessions Judge by order, dated 12th March, 1980 whereby the learned Magistrate was directed to summon the Assistant Commissioner as a defence witness. On 30th March, 1980 the trial Magistrate asked the accused persons to supply the address of the Assistant Commissioner and the particulars of the requisite file so that the defence witness may be summoned. The order, dated 28th May, 1980 shows that the accused were directed to file certified copies of the documents required to be proved through the Assistant Commissioner. The case was adjourned to 22nd June, 1980. On this date the accused produced an application before the Court containing a report of the record-office that the requisite record was not available. The trial Magistrate thereupon directed that the District Magistrate may be requested to direct the Copying Agency to supply the requisite copies. The case was adjourned to 15th July, 1980. The trial Magistrate having satisfied himself that the requisite record had been lost, allowed the accused to lead secondary evidence. Yusuf appellant thereupon produced documents Exh.D.B. And Exh.D.D. And made a statement closing his defence. His counsel also made a statement closing the defence evidence. In the circumstances, there is no substance in the contention that the accused were deprived of the opportunity to produce their defence.
' It will not be out of place to mention here that defence of Yusuf appellant was a bare denial. In his examination under section 342, Cr.P.C. He did not state that Mst. Nasreen Kausar had contracted marriage with him.
7. The learned counsel for the appellants next contended that section 148, P.P.C. Is not attracted to the facts of the case; presence of Muhammad Amir, P.W.3, near Chashma Mela is not established and the uncorroborated solitary statement of Mst. Nasreen Kausar was not sufficient to warrant the conviction.
8. There is nothing on the record to show that Mst. Gullan was a member of any unlawful assembly.
The only role attributed to her was that she took Mst.Nasreen Kausar to Chashma Mela on the pretext of etching water and gave a call to Yusuf appellant that she had brought Mst. Nasreen Kausar. No other overt act has been attributed to her. The other accused who, according to the prosecution, then took away Mst. Nasreen Kausar forcibly, were four in number. In the circumstances, section 148, P.P.C. Is not attracted to the facts of the case. The conviction and sentence of all the appellants on that charge is, therefore, set aside.
9. As regards the charge of abduction against the appellants, the prosecution has relied on the evidence of Mst.Nasreen Kausar and Amir P.W.3. Statement of Mst. Nasreen Kausar against the acquitted accused in that regard has not been relied upon by the trial Court. The question that arises, therefore, is whether the statement of Amir P.W. Provides sufficient corroboration to the statement of Mst. Nasreen Kausar so as to warrant the conviction of the appellants on the charge of abduction. Mst. Nasreen Kausar has given a long list of her abductoRs, At the trial she also named one Muhammad lqbal Lambardar in the list of the abductors, although he is not an accused in this case. She stated that on the way Muhammad lqbal Lambardar and acquitted accused Nura, Nur Hayat, Ahmad Khan and Allah Yar, all armed with guns, joined the other accused and took her to different places. Muhammad Amir P.W.3 is the first paternal cousin of Mst.
Nasreen Kausar. He stated that Mst. Gullan took Mst. Nasreen Kausar to Chashma Mela and also claims to have seen Mst. Nasreen Kausar being forcibly lifted by Yusuf, Muhammad Yar (since dead), Sarfraz and Taj Muhammad accused. Amir P.W.3 admitted that he was residing in the house of Muhammad Hanif, father of Mst. Nasreen Kausar. According to Mst. Nasreen Kausar the distance between her house and the Chashma was two miles. In that view of the matter Amir P.W. Is a chance witness to the abduction of Mst. Nasreen Kausar. Although the alleged abduction took place in the broad daylight but no independent witness has been produced in support of the prosecution version. I am, therefore, of the view that the statement of Amir P.W.3 does not furnish the requisite corroboration and the case of the appellants in so far as the charge of abduction is concerned, is at par with those of acquitted accused. Accordingly the appellants are acquitted of the charge under section 366/149, P.P.C. Mst. Gullan, Sarfraz and Taj Muhammad appellants are on bail. They shall be discharged from their bail bonds.
10. Now I proceed to consider the evidence against Yusuf appellant regarding the charge of rape.
Mst. Nasreen Kausar stated that she was subjected to rape by Yusuf appellant time and again. She was medically examined by Woman Medical Officer, Civil Hospital Khushab, who opined that she was fifteen and a half years of age and had been subjected to Zina. Three vaginal swabs were sent to the Chemical Examiner and his report is to the effect that the same were stained with semen.
Statement of Mst. Nasreen Kausar in so far as the charge of rape is concerned, finds substantial corroboration from the statement of the medical witness and the report of the Chemical Examiner.
Yusuf appellant was, therefore, rightly convicted under section 376, P.P.C. And his conviction on that charge is maintained.
11. Lastly, the learned counsel for the appellants submitted that in the circumstances of the case the sentence of R.I. For seven years under section 376, P.P.C. Is excessive. This submission merits consideration. Yusuf appellant was arrested on 22-9-1976 and the order-sheet of the trial Court shows that till 18-1-1977 he was in custody. He was convicted by the trial Court on 28-9-1980. Thus he remained in detention as under trial for about four months and faced the agony of a prolonged trial for over four yeaRs, Taking these facts into consideration, I reduce the sentence of Yusuf appellant under section 376, P.P.C. To R.I. For five yeaRs, The fine imposed on him by the trial Court on this charge is maintained. In default of payment of fine he will undergo further R.I. For six months.
Appeal stands disposed of accordingly.